AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 4 November 2020

Nguyen v R

[2020] NSWCCA 281

Drugs
APPEAL SENTENCE APPEAL OFFENDER

Citation: Nguyen v R [2020] NSWCCA 281
Court: NSW Court of Criminal Appeal
Date: 4 November 2020
Judges: Hoeben CJ at CL, Harrison J, Bellew J

Background

The appellant coordinated a cocaine supply syndicate over approximately four weeks in May and June 2018. Acting as the organiser, he directed two runners to physically deliver drugs to customers and collect cash proceeds. In total, the syndicate distributed 91.2 grams of cocaine. On 28 February 2020, the appellant pleaded guilty in the Parramatta District Court to one count of ongoing supply of a prohibited drug, with a further offence of knowingly directing the activities of a criminal group taken into account on a Form 1.

The appellant was sentenced to three years' imprisonment with a non-parole period of one year and nine months. A separately charged individual, who had supplied 28.3 grams of cocaine to one of the appellant's runners on a single occasion, had earlier been sentenced by a different District Court judge to an aggregate term of two years and nine months, served by way of an intensive corrections order (a community-based sentence involving supervision and conditions rather than full-time custody).

The appellant sought leave to appeal, ultimately pressing a single ground: that his sentence was unjustifiably disparate from the sentence imposed on that co-offender, producing a legitimate sense of grievance.

  • Whether the appellant had a justifiable sense of grievance arising from the disparity between his sentence and that of the co-offender, as required by the parity principle in sentencing.
  • Whether the sentencing judge erred by failing to treat the co-offender as part of a larger drug network, which the appellant contended should have elevated the co-offender's culpability and thereby narrowed the sentencing gap.

Decision

The Court of Criminal Appeal rejected the parity argument and dismissed the appeal. Harrison J, with whom Hoeben CJ at CL and Bellew J agreed, applied the principle from Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 that "considerable obstacles" face an applicant on a parity ground where the sentencing judge was fully aware of the comparable co-offender's sentence and reasons, and provided reasons for imposing a different sentence. That was precisely the situation here: the sentencing judge had carefully reviewed the co-offender's agreed facts and remarks on sentence before addressing parity explicitly in his own remarks.

The Court found that the two offenders were not truly comparable. The appellant was the organiser of an ongoing supply syndicate spanning nearly a month, directed multiple runners, and was responsible for 91.2 grams of cocaine. The co-offender, by contrast, was sentenced for supplying 28.3 grams of cocaine on one occasion and possessing a further quantity found in his car. The co-offender's role and the volume of drugs for which he was sentenced were materially different.

The appellant had contended that the sentencing judge should have looked behind the co-offender's sentencing findings to conclude that the co-offender was part of a larger supply network, which would have made the co-offender appear more culpable. The Court dismissed this submission, noting that the argument's own framing, that such a finding was "open" to the sentencing judge, implicitly acknowledged the opposite finding was equally open. There was no evidence compelling that inference.

The Court also observed that any attempt to recast the co-offender's role would have undermined rather than supported the parity argument, since it would have reduced the comparative significance of the co-offender's sentence rather than bringing the two sentences closer together.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle requires a court to avoid sentences so disparate between co-offenders as to produce a justifiable sense of grievance or the appearance that justice has not been done, following Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295.
  • Considerable obstacles confront a parity argument where the sentencing judge was aware of the co-offender's sentence and reasons, and provided explicit reasons for the differentiation. The Court of Criminal Appeal reaffirmed this principle from Tatana v R [2006] NSWCCA 398.
  • Differentiating between sentences imposed on co-offenders is a discretionary assessment for the primary sentencing judge, and an appellate court will not simply second-guess that assessment: Lloyd v R [2017] NSWCCA 303.
  • No legitimate sense of grievance was established where the appellant organised a sustained supply syndicate over several weeks, while the co-offender was sentenced for a single supply transaction involving a smaller quantity.
  • A submission that a finding was merely "open" to a sentencing judge is insufficient to establish error, particularly where the opposite finding was equally open on the available evidence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and s 25A(1)
- Crimes Act 1900 (NSW), s 93T(4A) and s 193C(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Tatana v R [2006] NSWCCA 398
- Lloyd v R [2017] NSWCCA 303